Protection against arrest and
detention (article 22)
S.Rakesh Kumar GL
Introduction
Arrest is a legal process which takes away personal liberty
otherwise recognised as a fundamental right and guaranteed as such
to all persons. Article 22 provides the procedural safeguards
against arbitrary arrest and detention. An arrest has serious
ramifications and thus can only be made under the authority of law and
in accordance with that law. In a free and civilized society an individual
needs to be protected from the police atrocities and abuse so as to
ensure the effective administration of criminal justice. All human beings
have the right to liberty and security and it is the duty of the state to
ensure the protection of these rights so as to make all other rights
meaningful. Violation of these rights is however commonplace, and
arrests and detention on unreasonable grounds are rife. In order to
guarantee the right to security and liberty, various procedural
safeguards have been incorporated in the Criminal Procedure Code,
and for giving these rights a constitutional status, Art.22
embodies various other corresponding/incidental protections to make
these basic rights a reality.
Learning Outcome
Under the Criminal Law there is presumption of
innocence till the guilt of the accused is proved beyond reasonable
doubt. Article 22 guarantees constitutional safeguards to an arrestee
and a detenue under preventive detention. These protections in a way
ensure prevention from miscarriage of justice and check on police
atrocities. Arrest and preventive detention have the effect of curtailing
right to personal liberty, hence these safeguards are very crucial.
These rights cannot be curtailed otherwise than by following legal
process.
Protection Against Arrest And Preventive Detention
The basis of this Article is to provide sufficient safeguard to
the person to be arrested by ensuring guarantee of minimum rights
provided therein in order to avoid miscarriage of justice and also
curtail the powers of the Union/State Legislatures to enact laws for
preventive detention subjecting them to certain constitutional
limitations. Despite these statutory provisions, there is ample
evidence of police oppression and abuse.
1.1 International Scenario
Violation of right to liberty and security has been considered a
human rights violation. Various international legal rules governing
arrest and detention have been embodied in Art. 3 of the Universal
Declaration of Human Rights, 1948; Art.9(1) of the International
Covenant on Civil and Political Rights, 1966; Art.6 of the African
Charter on Human and Peoples‟ Rights, 1981; Art.7 (1) of the
American Convention on Human Rights, 1969 and Art.5(1) of the
European Convention on Human Rights, 1950. Despite these
international commitments, there are a good number of persons
deprived of their liberty due to arbitrary detention, who do not
have access to the substantive, procedural and institutional
guarantees. Such persons deprived of their liberty are frequently
unable to benefit from legal resources and guarantees that they are
entitled to for defending themselves as required by law in any judicial
system.
1.2 Historical Development
Draft Constitution by K.K. Munshi in its chapter on rights to freedom, had provided: “No
person shall be deprived of his life, liberty or property without due process of law” The other
provision, which in effect elucidated the “due process” clause, had guaranteed to every
person the right to be informed, within twenty-four hours of his deprivation of liberty, by
what authority and on what grounds the action was being taken. They had laid down
further that no person would be subjected to prolonged detention preceding trial, to
excessive bail or unreasonable refusal of bail, to inhuman, or cruel punishment or to
denial of adequate safeguards and proper procedure.Ambedkar‟s draft also had
included a provision that the State should not deprive any person of life, liberty or property
without the “due process of law”.The Sub-Committee on Fundamental Rights discussed the
subject and included in its draft report two clauses, 11 and 29: “11. No person shall be
deprived of his life, liberty or property without due process of law.” “29. No person shall
be subjected to prolonged detention preceding trial, to excessive bail, or unreasonable
refusal thereof, or to inhuman or cruel punishment.” The provision regarding the right
to be informed of the authority and grounds of deprivation of one‟s liberty within
twenty-four hours was omitted in view of the “due process of law” provision –clause 11.
After much divergent debates and discussions on the most controversial “due process
clause”, it was felt that draft Article 15 gave to Parliament a carte blanche to provide
for the arrest of any person under any circumstances it deemed fit. Hence, a new Article
15 A was drafted. Introducing this Article in the Assembly on September 15, 1949,
Ambedkar claimed that in substance the Article contained the substance of the law of
“due processes”. The first two clauses embodied two of the most fundamental
principles of justice recognised by every civilized country and which were already
contained in the Criminal Procedure Code. He said, that the Article only sought to raise
these principles to the status of constitutional guarantees so as to restrict the power
of Parliament and state Legislatures to abrogate them by legislation. This Article, as
moved by Ambedkar elicited wide criticism. Subsequent to a long debate, Ambedkar
accepted certain points made by the critics.
In response to a common point stressing on the need for fixing a time limit for informing
the grounds of arrest to the arrested person, Ambedkar said that the words “as soon
as may be” were integrally connected with clause (2), requiring no person to be detained in
custody for more than twenty-four hours without authority for such detention being
obtained from a Magistrate. Since the Magistrate had obviously to be told of the grounds
of arrest, “as soon as may be” could not extend beyond twenty-four hours. Regarding
another objection he agreed to add “and be defended by a legal practictioner” after the
words “to consult” so as to remove any ambiguity. He clarified that in order to curtail the
complete power of the Union and the States to legislate on preventive detention, as already
possessed by virtue of the entries in the lists, this new Article intended to render this
power subject to certain specific limitations. In the absence of such a provision, the
Legislatures might make any kind of law for preventive detention. Regarding another
criticism as legitimate, he agreed to amend the draft Article to provide for the requirement
to communicate the grounds of such detention to the person concerned as soon as may be –
unless it was against public interest to disclose the facts. The new draft Article 15-A
as amended was adopted by the Assembly. In the course of revision, the Draft Committee
renumbered Article 15-A as Article 22.The proviso to clause (3) of Draft Article 15-
A was converted into an independent clause (4) in the renumbered Art. 22 and clauses (3-
a), (3-b) and (4) were redrafted and renumbered as clauses (5), (6) and (7) respectively.
These changes were only of drafting nature.
Constitutional Provisions Regarding Protection Against Arrest And Preventive
Detention
Personal liberty of every individual holds significance in a free society like ours. No person
can be detained without legal sanction. The right to personal liberty is a basic human right.
There are three rights that stand independent of each other- the right to be made aware of
the reason of arrest as soon as an arrest is made, the right to be produced before a
Magistrate within twenty-four hours and the right to be defended by a lawyer of own
choice. Besides these rights there is a general declaration that no person shall be deprived
of his personal liberty except by procedure established by law, that insists on legality of
action. The rights given by Article 22(1) and (2) are absolute in themselves and do not
depend on other laws, State of Madhya Pradesh v Shobharam AIR 1966. Even though
Articles 21 and 22 go together but they cannot be treated as inter-related or inter-dependent.
In a way Article 22 advances the purpose of Article 21, as it not only specifies
some guaranteed rights available to persons arrested or detained but also lays down,
the manner to deal with persons detained preventively. 8 Art. 22 (3) & (4) enact two
exceptions to the fundamental rights otherwise guaranteed to the arrested persons
under Clause (1) & (2), i.e., these protections are not available in case of an enemy alien
and a person arrested or detained under any law providing for preventive detention.
A plain reading of first part of Article 22 of the Constitution of India, clearly indicates that a
person who is arrested cannot be detained in custody without being informed, as soon as may
be, of the grounds for such arrest. It means that he is to be informed of the grounds for his
arrest. The personal liberty being the cornerstone of our social structure, the legal
provisions relating to arrests have special significance.Article 22 makes the minimum
procedural requirements which must be included in any law enacted by legislature in
accordance of which a person is deprived of his personal liberty. A person when
arrested is undeniably deprived of his personal liberty. Some of the procedural protections
have been provided to a person to be arrested in Sections 50, 50-A, 55 and 75 of the CrPC.
Section 50 casts a strict duty on the part of the police officer making the arrest immediately
to communicate the grounds of arrest to the arrested person.
Right To Be Informed Grounds Of Arrest
A person's personal liberty cannot be curtailed by arrest without informing him about the
reason of his arrest, as soon as possible. In case of arrest by warrant/order, as the case may
be, the warrant or the order itself must tell him, and where there is no warrant or
order the person making the arrest must give him that information. 12The basis of this rule is
to enable the arrested person to prepare his defence, and to move the court for bail. A
citizen's liberty cannot be curtailed except in accordance with law. When a person
arrested without warrant alleges by affidavit that he was not communicated with full
particulars of the offence leading to his arrest in the face of such affidavit, the police diary
cannot be perused to verify the police officer's claim of oral intimation of such particulars.
Even if such oral communication was made, whether full particulars were communicated
not being known the arrest and detention of the person is illegal ,Ajitkumar v State of Assam
1976
Right To Be Produced Before The Magistrate Within 24 Hours
Article 22 (2).- Every person who is arrested and detained in custody shall be
produced before the nearest magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the journey from the place of arrest to the court of
the magistrate and no such person shall be detained in custody beyond the said period
without the authority of a magistrate.
Art.22(2) provides one of the most material safeguard that the arrested person must
be produced before a magistrate within 24 hours of such arrest so that an
independent authority exercising judicial powers may without delay apply its
mind to his case. The corresponding provisions in the CrPC are Sections 56
and 303. But the constitution makers were anxious to make these safeguards an
integral part of the fundamental rights.This is a mandatory provision and is based on the
policy of law that the magistrate before whom a prisoner is produced must be in a position to
bring an independent judgement to bear on the matter.
This provision is not to be treated as a mere formality. Its purpose is to enable the person
arrested to be released on bail, or other provision made for his proper custody, while the
investigation is pending for the offences with which he is charged pending an enquiry
or trial State of Uttar Pradesh v Abdul Samad AIR 1962 SC 1506 . The magistrate
should apply judicial mind to see whether the arrest of the person produced before
him is legal, regular and in accordance with law. He is not expected to act
mechanically. The requirement to produce an arrested person before a magistrate may
come to an end if he is released on bail.15
1.3.1.3 Right To Legal Assistance
Article 22 (1). – No person who is arrested shall be detained in custody without
being informed, as soon as may be, of the grounds of such arrest nor shall he be
denied the right to consult, and to be defended by, a legal practitioner of his
choice. When a person arrested in relation to a cognizable offence and is first
produced before a magistrate, he becomes entitled to the right to access to legal
aid, to consult and to be defended by a legal practitioner. It is obligatory for such
magistrate to make the arrestee fully aware of his right to consult and be defended
by a legal practitioner and, that one would be provided to him from legal aid at the
expense of the State if he has no means to engage a lawyer of his choice. A
lawyer has to be provided at the commencement of the trial to every accused
who is unrepresented by one, and is to be engaged to represent him during the
entire course of the trial. It is the Constitutional duty of the court to provide him
with a lawyer before the commencement of the trial even if the accused never
asks for it or he remains silent, and this obligation is absolute. The failure to
fulfil this obligation at the commencement of the trial would have the effect of
vitiating the trial, the resultant conviction and sentence, if any, given to the
accused. However, the failure to provide a lawyer to the accused at the pre-trial
stage may not have the same consequence of vitiating the trial [Mohammed
Ajmal v State Of Maharashtra 2012]Such a fundamental right given under
this Article is not fettered by any reasonable restrictions. Any law that
takes away this right offends against the Constitution. He becomes entitled to
consult and to be defended by a legal practitioner of his choice as soon as he is
arrested and continues so long as the effect of the arrest continues.
In NandiniSathpathy v. P.L.Dhani (1978) , it was observed that the spirit
and sense of Art.22 (1) is that it is fundamental to the rule of law that the services
of a lawyer shall be available for consultation to any accused person under
circumstances of near custodial interrogation. The Court however, clarified that
the lawyer cannot harangue the police, but may help his client and complain on his
behalf.
In Poolpandithe Court did not accept that a person summoned
for interrogation is entitled to the presence of his lawyer during
questioning,Poolpandi v 20Suprintendent, Central Excise (1992). In D.K. Basu
v State of West Bengal , the Supreme Court issued directions to be
followed as preventive measures in all cases of arrest or detention to the
effect that the arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation. In a recent case
Directorate of Revenue Intelligence v Jugal Kishor(2011) , the Court did
not accept the contention that the respondent is entitled as of right, to the
presence of his lawyer at the time of his interrogation in connection with the
case.
The right to consult and be defended by a legal practitioner is not to
be interpreted as sanctioning or permitting the presence of a lawyer during
police interrogation. The role of a lawyer, as per our legal system, mainly
focuses on court proceedings. It is only for the purpose of resisting remand to
police or judicial custody and for granting of bail; the accused would need a
lawyer to explain to him the legal repercussions in case he intended to make a
confessional statement in terms of Section 164 CrPC; to represent him in the
court after the charge sheet is submitted by the police and to decide,
upon the future course of proceedings, both at the stage of the framing
of charges; and beyond that, for the trial.The Criminal Procedure Code provides
for the right to be defended by counsel, but not as a guaranteed right.
The framers of the Constitution have made it a constitutional right by putting
it beyond the power of any authority to alter it without the Constitution being
altered. This condition cannot be altered by any authority even on grounds of
public interest.
1.3.2 Preventive Detention
The history of preventive detention pre-dates the Constitution and can be traced
back to the Bengal State Prisoners Regulation, 1818, ever since 1950, the centre
has been having preventive detention laws except for two brief gaps,
between January 1970 and May 1971 and then from March 1977 till
September 1980. In September 1980 the President promulgated the National
Security Ordinance, 1980 which ultimately became the National Security
Act, 1980. In addition to that there are other Central and State laws which
provide for preventive detention. 24 The Parliament has wide legislative
jurisdiction in the matter of preventive detention under entry 9, List I, for
reasons connected with defence, foreign affairs, or the security of India. Under
entry 3 List III, Parliament as well as the State Legislatures can concurrently
make a law for reasons connected with security of State, maintenance of public
order, or maintenance of supplies and services essential to the community. 25
Parliament can also enact law on preventive detention in exercise of its
residuary power on any other ground.
1.3.2.1 Nature And Scope
Preventive detention means detention of a person without trial and conviction
by a court, merely on the basis of suspicion or reasonable probability in the
mind of an executive authority that the detenue has the potential of committing
prejudicial act. Preventive detention has been regarded as „sinister-looking‟ feature
out of place in a democratic Constitution, necessarily designed to prevent the
abuse of freedom by anti-social and subversive elements which might imperil the
national welfare.A.K.Gopalan v State of Madras AIR 1950 .
It is a drastic power to detain a person without trial and in many countries it is not
allowed to be exercised except in times of war or aggression. Preventive detention
has not been unknown in other democratic countries like Britain, U.S.A. and
Canada, but limited as a war time measure. The Indian Constitution recognises
preventive detention in peace time also. It is preventive, not punitive, in theory.
The purpose of preventive detention is not to punish an individual for any wrong
done by him, but to curtail his liberty, with a view to pre-empt him from indulging
in conduct injurious to the society, Francis Coralie Mullin v The Administrator,
Union of India AIR 1981.
The power of preventive detention is a frightful and awesome power with
drastic consequences affecting personal liberty, which is the most cherished
and prized possession of man in a civilised society. The law of preventive
detention must, therefore, pass the test not only of Article 22 but also of Article 21.
It is a power to be exercised with the greatest care and caution and the courts have
to be ever vigilant to see that this power is not abused or misused, inasmuch as the
preventive detention is qualitatively different from punitive detention and their
purposes are different. In case of punitive detention, the person has fullest
opportunity to defend himself, while in case of preventive detention, the
opportunity that he has for contesting the action of the Executive is very limited.
Therefore, the "restrictions placed on a person preventively detained must,
consistently with the effectiveness of detention, be minimal".Sampat Prakash v
State of Jammu and Kashmir (1969)
The Constitution (Forty-Fourth Amendment) Act, 1978 amended Article 22 for
introducing a few more safeguards in case of preventive detention which are as
follows:
The maximum period for which a person may be detained without
obtaining the opinion of the advisory board has been reduced from three to two
months. In all cases of preventive detention beyond two months, advisory
board is to be consulted. There will be no preventive detention beyond two months
unless the advisory board reports that there is in its opinion sufficient cause for
such detention.
An advisory board is to consist of a chairman and not less than two other
members, the chairman being a serving Judge of the appropriate High Court
and the other two members being the serving or retired High Court Judges. The
board is to be constituted in accordance with the recommendations of
the Chief Justice of the appropriate High Court. No person is to be kept in
preventive detention beyond the maximum period prescribed by any law made
by the Parliament.However, the changes have not yet been notified. period
prescribed by any law made by the Parliament.However, the changes have not yet
been notified.
Safeguards Against The Order Of Preventive Detention
Art. 22 Clauses (4) to (7) lay down a few safeguards, and provide for
minimum procedure to be observed in case of preventive detention. Any law or
administrative action relating to preventive detention infringing these safeguards
would be rendered invalid as infringing the fundamental rights of the detainee.
The scope and ambit of these safeguards and those evolved by the judicial
interpretation aim at protecting the liberty of detenue against bureaucratic
lethargy, insensitivity, red tape and casual approach.
Article 22Of(5).-
Communication WhenOfany
Grounds person is detained in pursuance of an
Arrest
order made under any law providing for preventive detention, the authority
making the order shall, as soon as may be communicate to such person the
grounds on which the order has been made and shall afford him the earliest
opportunity of making a representation against the order.
Art. 22(5) casts a dual obligation on the detaining authority: to
communicate the grounds of detention to the detenu at the earliest; to afford
him the earliest opportunity of making a representation against the detention
order which implies the duty to consider and decide the representation
when made, as soon as possible.But without getting information sufficient to
make a representation against the order of detention it is not possible for the
detenue to make the representation. The import of Art. 22(5) is that all facts and
particulars which influence the detaining authority in arriving at its satisfaction
must be communicated to the detenue. An effective representation is not
possible against the detention order unless copies of material documents
considered and relied upon by the detaining authority in arriving at his
satisfaction to detain the detenue were supplied to him, Sophia
GulamMohd. Bhan v State of Maharashtra AIR 1999 . Grounds supplied to
the detenue which are vague or in a language with which he is not conversant
would not provide him the effective knowledge of facts and circumstances on
which the order of detention was based. This will vitiate the order of detention,
Harkishan v State of Maharashtra AIR 1962 SC 911.
Non-consideration by the government of the representation filed by a
counsel on behalf of the detenue vitiates his detention. Representation
by the counsel is representation by the detenue himself and it ought to be
considered by the authority concerned, BalchandChorasia v Union of India
(1978) . The right of a detenue to consult a legal adviser of his choice in not only
confined for the purpose of defence in a criminal proceeding but extends
also for securing release from preventive detention or filing a writ petition or
prosecuting any claim or proceeding, civil or criminal. This right is obviously
included in the right to live with human dignity and is also part of personal
liberty. The detenue cannot be deprived of this right, except in accordance with
reasonable, fair and just procedure established by a valid law.
Delay In Making An Order Of Detention To Be Explained
The right of representation under Art. 22 (5) is a valuable constitutional right and
is not a mere formality. Art. 22 (5) makes it obligatory for the detaining
authority to afford the earliest opportunity to the detenue to make representation,
and that must be necessarily construed to embody the constitutional right to a
proper and expeditious consideration of the representation by the authority
concerned, Mohinuddin v Distt. Magistrate, Beed(1987) 4 SCC 58, 66 To make
this right of representation effective it must be considered and disposed of
expeditiously by the concerned authorities otherwise the basic purpose of
affording the earliest opportunity of making the representation is likely to be
defeated.The court is required to be cautious and pragmatic while dealing with the
question of delay in making an order of detention. The Court has to identify live
link between the prejudicial activity and the order of detention. The only
requirement is the satisfactory explanation of the delay. The unexplained, undue
long delay between the prejudicial activity and making of the order of
detention, renders the order of detention vulnerable, liable to be quashed.
There is no precise rule formulated in this regard. In case of undue and long delay
the court has to investigate whether the link has been broken in the circumstances
of each case. The delay in issuing the order of detention is a valid ground for
quashing an order of detention, T.A. Abdul Rahman v State of Kerala (1989) 4
SCC 741. Similarly, unsatisfactory and unexplained delay between the date of
order of detention and the date of securing the arrest of the detenue, would
throw considerable doubt on the genuineness of the subjective satisfaction
of the detaining authority. This may lead to a legitimate inference that the
detaining authority was not really and genuinely satisfied as regards, the necessity
for detaining the detenue with a view to preventing him from acting in a
prejudicial manner.
4. Effect Of Non-Application Of Mind
When a person is enlarged on bail by a competent criminal court, the validity of an
order of preventive detention, based on the very same charge which is to be tried by
the criminal court, should be scrutinized with great caution, In Vijay Narain
Singh v State of Bihar (1984) a case where a detenue is released on bail and is
enjoying his freedom under the order of the court at the time of passing the order of
detention, such order of bail must be placed before the detaining authority to enable
him to reach at the proper satisfaction. Otherwise, non- placing and non-consideration
of such vital material as the bail order would vitiate the subjective decision of the
detaining authority, TRishikeshTanajiBhoite v State of Maharashtra (2012) he
detention order would be bad if the detaining authority is not made aware of the fact
that the bail application of the detenue was pending on the date when the detention
order was passed,Rekha v State of Tamil Nadu (2011).
5. Advisory Boards
Another safeguard provided by Art.22(4) is that preventive detention for over three
months is possible only when an advisory board holds that, in its opinion,
there is sufficient cause for such detention. On a reading of clause (a) to Article 22(4)
and the proviso thereto and clause (b), it can be seen that what is prohibited is the
detention of a citizen for more than three months as per the law made by the State
which contained no provision for an Advisory Board as constituted as per clause (a)
to Article 22(4) for giving opinion as to whether the detention is with sufficient
cause. Therefore, if the State law contains no provision for such Advisory
Board, such law will be unconstitutional, AnithaBruse v State Of Kerala
WP(Crl) 2008
Article 22(4).- No law providing for preventive detention shall authorise the
detention of a person for a longer periothan three months unless
a)an Advisory Board consisting of persons who are, or have been, or are qualified to
be appointed as judges of a High Court has reported before the expiration of the
said period of three months that there is in its opinion sufficient cause for such
detention:
Provided that nothing in this sub-clause shall authorise the detention of any person
beyond the maximum period prescribed by any law made by Parliament under sub-
clause (b) of clause (7); or
b)such person is detained in accordance with the provisions of any law made by
Parliament under sub-clauses (a) and (b) of clause (7).
While interpreting Art. 22(4), the Supreme Court has spelled out the rule that not only
the advisory board should report about its opinion regarding sufficiency of cause for
the detention of the detenu within three months of the date of detention order, but that
the government should also confirm and extend the period of detention, beyond three
months, within the three months time limit.44 Clause (7) of Article 22 confers power
on the Parliament to make a law prescribing the maximum period for which
any person may, in any class or classes of cases, be detained under any law providing
for preventive detention. Article 22 (7)(a) came up for interpretation before the
Supreme Court in SambhuNathSarkar vState of West Bengal 1973 . Section
17- A of the Maintenance of Internal Security Act that provided five of the six
heads mentioned in the Constitution for which a law of preventive detention
could be made while dispensing the reference to an advisory board, was declared to
be unconstitutional by the Apex Court. It was clarified by the Court that Article 22 (7)
(a) being an exception to Article 22 (4) and also being a drastic law by its very nature,
should only be used in extraordinary and exceptional circumstances. The
Parliament, as per the Hon‟ble Court, was required to prescribe both the
“circumstances” under which and the “class of cases” in which the reference to the
Advisory Board could be dispensed with. It is to be noted that Artcle 22 (7)(a)
empowers only the Parliament and not a State Legislature for making such a law
that does away with the requirement of obtaining the opinion of the Advisory Board in
appropriate cases.
Article 22 (7).- Parliament may by law prescribe-
a)the circumstances under which, and the class or classes in which, a person may be
detained for a period longer than three months under any law providing for
preventive detention without obtaining the opinion of an Advisory Board in
accordance with the provisions of sub-clause (a) of clause (4);
b)the maximum period for which any person may in any class or classes of
cases be detained under any law providing for preventive detention; and the procedure
to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).
Conclusion
In order to maintain law and order, the police being the law enforcement agency have
to be given powers. Under the preventive detention legislation a person can be
detained without trial merely on the basis of reasonable suspicion in the mind of the
executive of having potential of committing prejudicial act. In order to avoid
the probable chances of misuse of this power against the accused or the detenue, as the
case may be, certain procedural safeguards have been afforded to
the accused/detenue. Right to know the grounds of arrest, right to consult and
be defended by the lawyer of ones choice, right to be brought before the
magistrate within 24 hours, and in case of the detenue in preventive detention
the right of representation and the limit of three months detention etc. have
been provided as sufficient safeguards.
